I asked an attorney who worked with parent clients in a California child welfare court, what was their favorite part of their job. “I like being able to be a voice for people who don’t have a voice,” they explained. “So there’s something where, a lot of our people no bo—no one, they don’t ever feel that they’ve been heard. And it’s a good feeling to feel that you’ve given a voice to someone.” The idea that attorneys, especially publicly provided attorneys like this one, become a voice for marginalized laypersons before the law is common. Public defenders are often discussed as professional saviors of a kind, intervening on behalf of the poor, working-class, and other marginalized laypersons in need of representation and assistance as they navigate legal institutions. This attorney identified a professional voice that is heard in legal settings while generalizing that the many marginalized laypersons who came before the court “don’t have a voice” that would help them as they sought to maintain their parental and custodial rights. Judges and attorneys I interviewed often brought up examples of parents in child welfare court who they described as having problematic or unfit voices that could negatively affect their legal interests.
Attorney–client representation in mainstream US courtrooms tends to amplify attorneys and judges’ speech over that of laypersons. Interpersonal interactions within institutions can formally and informally diminish, enhance, replicate, and block the utterances of bureaucratic actors, contributing to the increased influence of certain institutional actors over others (Feliciano-Santos Reference Feliciano-Santos2021). Laypersons unfamiliar with legal norms and procedures who inhabit a precarious status with respect to the daily tasks of the court are less likely to be able to assert their narratives as the dominant or true narrative of a case compared with the narrative that is constructed in concert with legal decision makers (Conley and O’Barr Reference Conley and O’Barr1990; Matoesian Reference Matoesian1993). The discursive practices of both lay actors and legal professionals participating in legal disputes constitute a process of subject-formation, involving the enactment of gendered subjectivities (He and Ng Reference He and Ng2013; Hirsch Reference Hirsch1998), and racialized and classed subjectivities (Razack Reference Razack1998, Reference Razack2000), that can reproduce stereotypes of socially marginalized identities and positionalities. Lay actors’ voices are not always categorically absent from legal spaces, as the quote above may suggest, but their voices within the law are often subject to constraints that devalue and deprioritize their narratives over institutionalized communicative norms.
Child welfare courts in the United States have authority to terminate parental rights and determine child custody through hearings, investigations, and forms of surveillance. They render the relationships between parent caregivers and their children a subject of court jurisdiction. The judges, social workers working with Child Protective Services agencies, and attorneys who manage the legal procedures have significant levels of professional discretion (Lens Reference Lens2015; Lee Reference Lee2016). Qualitative research has found that parents who exhibited more deference to child protective services social workers’ recommendations were more likely to have their children remain in their care during the course of ongoing child welfare cases compared with parents who were more vocal about their rights to privacy and challenged the authority of social workers, leading to an increased likelihood that their children would be removed from their care during their ongoing child welfare case (Reich Reference Reich2005). Mothers who were investigated by child protective services have expressed fear and anxiety relative to how “their word will go over my word” referring to the institutional power of social workers’ evaluations in determining child removals (Fong Reference Fong2020, 627). Child welfare cases are often based on incomplete information that sets up a partial and fragmented basis for decision making, sharpening the vulnerability of children and families from marginalized backgrounds (Glenn-Levin Rodriguez Reference Glenn-Levin Rodriguez2017). In order to further examine the how child welfare courts enact forms of authority and surveillance despite often lacking clear and complete evidence of risk of harm to children, additional empirical research of the social interactions that inform discretionary decisions in these settings are needed. This article draws on observations of parents’ speech practices and professionals’ evaluations of parentsʼ linguistic practices to examine the role that language practices, discretion, and social evaluations play in shaping parents’ legal experiences in child welfare courts.
My analysis relies on what linguistic anthropologists call “metapragmatics” which is the study of talk about talk, how it is used, and what it accomplishes in the contexts of its use (Lucy Reference Lucy and John1993; Silverstein Reference Silverstein and John1993; Mertz Reference Mertz1994). The use of language to comment on what language does is often overlooked as a banal feature of everyday life. However, metapragmatic discourses play an important role in processes of social formation in that they are a performative activity that can normalize and reinforce ideas about social action, social roles, and reality itself.Footnote 1 Metapragmatic activity intersects with indexical, interactional, and ideological processes to shape socially recognized categories of value and personhood (Reyes Reference Reyes2011). In legal contexts where determinations of evidence and facts are mediated through linguistic exchanges, metapragmatic analysis helps us understand the social effects of professionals’ talk about lay actors’ speech in the course of case management.
In this article I examine statements made by judges and attorneys in a California child welfare court about the speech practices of largely low-income and often-racialized parent clients to demonstrate how these and other communicative practices constructed a socio-legal ecology in which the speech of parents involved in child welfare proceedings was devalued. I term this practice of reflexive social commentary about speech that contributes to wider forms of social disinterest, disavowal, and rejection of the validity and importance of the linguistic contributions of others “metapragmatic dismissals.” I argue the practice of normalizing and sustaining metapragmatic dismissals across child welfare case management reinforced bureaucratic hierarchies of voice and characterized lay actors as undeserving of state care and trust. This article extends the literature on language in courtrooms and experiences of lay actors in child welfare by outlining the social mechanisms through which metapragmatic discourse can contribute to lay actors’ feelings of distrust and alienation in child welfare interventions.
ANALYZING VOICE AND POWER ACROSS LEGAL CONTEXTS
The theoretical framework used in this article is derived from literature in linguistic anthropology on metapragmatics as social semiotic activity and the dialogic construction of voices (Bakhtin Reference Bakhtin, Holquist, Emerson and Holquist1981; Silverstein Reference Silverstein and John1993, Reference Silverstein1988; Keane Reference Keane2000; Inoue Reference Inoue2006; Rosa Reference Rosa2019). In this literature, voices are discursive practices that can be construed as indexes of particular types of personae, through what Agha (Reference Agha2005) terms the segmentation and typification of voices that can be assigned differential value within a social group. Voices are dialogic and therefore interdiscursively construct not only speakers, but hearers and interlocutors, as utterances are rendered meaningful in the context of narrating events (Bakhtin Reference Bakhtin, Holquist, Emerson and Holquist1981, 428). This framework interrogates the language practices by judges and attorneys in an effort to denaturalize the authoritative institutional ontological modes of perception that often exceed and overdetermine otherwise empirical assessments of marginalized bodies and speech (Rosa and Díaz Reference Rosa and Díaz2020).
Metapragmatic discourse—talk about talk in relation to its use in social contexts—provides a generative entry point from which to examine the interplay of language, action, and social evaluations in legal settings. In law schools, metapragmatic commentary shapes the pedagogical approach where law students learn how to read, think, and talk like a lawyer and how these practices will shape them as legal persons (Mertz Reference Mertz2007). In Hopi courts, metapragmatic discourses highlight fundamental questions about authority and power through the law, not just about the right to speak or the individual case at hand (Richland Reference Richland2008). Metapragmatic discourse in law school mock trials and in courts has been found to fuel gendered assessments of women’s speech (Hirsch Reference Hirsch1998; Chu Reference Chu2020). Metapragmatics play an important role in shaping social constructions of law and personhood through official on-the-record court exchanges and in the training of legal professionals.
Language and law scholarship has emphasized the importance of courtroom talk in terms of legal decision-making (Conley and O’Barr Reference Conley and O’Barr1990; Matoesian Reference Matoesian1993), but law in action also occurs in spaces outside the courtroom. Metapragmatic discourses that inform legal actions are always situated in relation to broader social discourses and activities. These language practices shape law, and in turn, the activities of law-making can also shape culture (Matoesian Reference Matoesian2001). Lay interactions with the law are dynamic reflections of the law’s intersection with everyday life and this can be studied by tracing the movement of written and spoken texts across legal settings (Rock, Heffer, and Conley Reference Rock, Heffer, Conley, Heffer, Rock and John2013). Scholars have identified forms of linguistic marginalization occurring in off-the-record interactions between lay actors and judges, attorneys, and other court staff that take place in courthouse conference rooms, hallways, and clerk offices (Baran and Holmquist Reference Baran, Holmquist, Avineri, Johnson and Rosa2018; López-Espino Reference López-Espino2023). Additional research is needed to understand how off-the-record legal-lay language practices shape both courtroom decision making and broader social frameworks of understanding and action through the law.
Analyzing lay voices in dialogic relationship with the metapragmatic commentary made about their speech by attorneys and judges can illuminate the normalized discursive strategies that can contribute to lay actors’ commonly reported feelings of alienation and devaluation in legal settings. Lay actors’ speech acts during official on-the-record court interactions have been found to be more or less powerful relative to how closely they narrate their claims through institutionalized patterns of value and relevance (Conley and O’Barr Reference Conley and O’Barr1990). Although the legal interpretation of the facts of legal cases are always a contested and constructed endeavor (Brenneis Reference Brenneis1983), power and influence over the way that speech becomes entextualized into official legal records provides legal institutions with a significant advantage in inscribing its own authority to differentially position those under their jurisdiction (Park and Bucholtz Reference Park and Bucholtz2009). Professionals inhabiting roles of institutional authority have been found to mobilize a “professional vision” that asserts the saliency and meaning of events, highlights and marks phenomena of interest, and produces authoritative material representations of events in ways that favor existing structures of power (Goodwin Reference Goodwin1994). The expertise legal professionals cultivate enables them to discursively reframe the concerns of laypersons during attorney–client meetings in ways that privilege their own ideas about preferred outcomes in legal settlements (Sarat and Felstiner Reference Sarat and Felstiner1986). Assertions of objectivity by institutional actors also constitute discursive practices that assert distinctions of value and legitimacy relative to legal arguments and evidence despite always being ideologically positioned (Bucholtz Reference Bucholtz2009, 505). Metapragmatic discourse across on- and off-the-record legal interactions affects the construction of authority across legal landscapes.
Metapragmatic commentary about the language practices of lay actors in legal settings can influence how professionals relate to the public they serve and the claims they make. Attorneys may draw on narratives that include racist, sexist, or homophobic stereotypes in their defense of individual clients in ways that may advance an individual client’s interest while subsequently having negative effects on future clients who are part of the groups being negatively stereotyped (Ahmad Reference Ahmad2002). The moral stances regarding the value of the speech of persons contained in metapragmatic evaluations (Keane Reference Keane2011) can “leak,” contributing to how people are perceived to be (Agha Reference Agha1998; see also Pardo Reference Pardo2013) and to social evaluations of authority, credibility, and legitimacy. These social evaluations are accomplished explicitly and implicitly through metapragmatic discourse and the ideologies that inform their interpretation (Urban Reference Urban and Brown2006; Richland Reference Richland2007, Reference Richland2008). By considering how metapragmatic dismissals circulate among legal professionals, scholars can examine how these linguistic practices can contribute to the maintenance of interpretive frames of stigma and deficiency that do not require explicit admissions of bias.
The parents in the child welfare court that I observed can speak for themselves and create their own narratives; however, in this socio-legal context, their utterances were limited and depreciated as deficient voices through strategies of silencing, voicing figures of disbelief, and labeling speech with stigmatizing labels. These forms of metapragmatic dismissals created a socio-legal ecology that normalized the devaluation of parents’ narrative practices across courthouse settings and interactions. Studying metapragmatic discourses through child welfare interventions across on- and off-the-record settings provides a way to examine how taken-for-granted perceptions about language practices and their speakers held by empowered actors in legal settings may influence notions of credibility in ways that exceed the actual empirical linguistic practices of marginalized participants.
WHOSE VOICE IN CHILD WELFARE?
Child welfare courts comprise an important setting in which to examine how metapragmatic commentary on lay actors’ speech practices can shape discretionary decision making, especially in light of the ways these institutions serve predominantly socioeconomically marginalized families and disproportionately intervene in Black and Indigenous communities (Roberts Reference Roberts2002, Reference Roberts2022; Fong et al. Reference Fong, Dettlaff, James and Rodriguez2014; U.S. Department of Health and Human Services 2018). Most of the cases in US child welfare courts are neglect cases that include a wide range of allegations of harm that are correlated with poverty (Drake and Pandey Reference Drake and Pandey1996; Pelton Reference Pelton2015). Recent work asserts that addressing poverty would significantly result in a decline in allegations of neglect (Kim and Drake Reference Kim and Drake2018). People living in poverty are more likely to be investigated and become involved in the child welfare system because of their higher need for social services and likelihood of living in hypersurveilled communities (Drake and Pandey Reference Drake and Pandey1996; Edwards Reference Edwards2019). In California 79 percent of all court allegations of maltreatment involve “neglect” as the sole allegation; nationally this number is 61 percent (U.S. Department of Health and Human Services et al. 2021). The bulk of the families involved in the child welfare system face socioeconomic marginalization and its accompanying hardships. Additionally, the families facing court proceedings are subject to the added stress that the court could permanently terminate their parental rights and custody.
The foundations of child welfare courts today were built through the funding and legal infrastructure mobilized by white, middle-class, Progressive-Era reformers. Their voices were heeded by local authorities, leading to the creation of juvenile courts empowered to legally separate children from their parents (Chandler [Reference Chandler and David1954] 1971; Nelson Reference Nelson1984). Despite discourses about the innocence and rehabilitative capacities of children, not all children were provided with quality care and support. Black children were consistently excluded from charity homes and other private institutions for the dependent and neglected in the early twentieth century and instead sent to delinquency institutions, psychiatric wards, or otherwise inferior care facilities, reinforcing racial stratification (Nelson-Butler Reference Nelson-Butler2013; Agyepong Reference Agyepong2018; Briggs Reference Briggs2020; Simmons Reference Simmons2020). Eugenics research informed the development of the first juvenile court in the country in Chicago, where detained Black and Mexican children were tested for their psychological and educational capacity to become productive members of society and the results were used to justify their incarceration and sterilization (Chávez-García Reference Chávez-García2012). During the Progressive and New Deal Eras, social workers lobbied on behalf of European immigrants receiving government assistance, selectively citing data to show that these communities were not dependent on government funds in contrast to stereotypes of Mexican immigrants and Black citizens (Fox Reference Fox2012). Legislative hearings on child welfare policy have a long history of demeaning the predominantly racialized, low-income, and single mothers who request the assistance of welfare resources (Gustafson Reference Gustafson2014). In light of the past and present context of the development of child welfare interventions in the United States, it remains imperative to interrogate the voices and narratives that define what child welfare means in legal practice and whose narratives and interests are shaping current and emergent child welfare interventions.
METHOD AND ANALYSIS
In order to study how metapragmatic discourses shaped social action in child welfare settings, I collected data in a California child welfare court through in-person ethnographic observations of court hearings and the off-the-record interactions that parents had with attorneys, judges, social workers, interpreters, and other court staff over the course of eighteen months between 2016 and 2018. In addition to ethnographic observations, I conducted interviews with parents, attorneys, judges, social workers, interpreters, and other court staff members. Forty parents were enrolled into the study at different points in their case trajectories, which enabled me to observe a range of court hearings, including initial, jurisdiction, disposition, review, and permanency plan hearings in addition to the various off-the-record interactions parents had with their attorneys and social workers in between hearings. Because child welfare court interventions regularly involve repeat court appearances, meetings, and court-ordered social services that extend across months at a time, I was able to observe how parents progressed along their cases and the many discussions parents, attorneys, judges, and social workers had about their progress and participation across these settings. This allowed me to document the development of talk about parents and their speech practices as they navigated multiple contexts that affected their child welfare cases through my observations and field notes.
As part of my commitment to confidentiality of all the participants in my study, I do not provide the name of the county in which I conducted observations and all names, dates, ages, places, and other identifying information has been adjusted to preserve the confidentiality of my research participants. Child welfare hearings in California are not open to the public. I obtained written permission from the presiding and juvenile judges, as well as informed consent from all parents, attorneys, judges, social workers, and interpreters interacting with parents in court to observe each hearing and any meetings with parents. Parents were recruited in the lobby through a recruitment script that I read in English and Spanish at the beginning of the morning and afternoon court sessions. Some parents contacted me to enroll in the study based on the information in a recruitment flyer posted in the lobby or after hearing about my study from other parents or their attorneys. I provided interested parents with additional information about the study. If recruitment was successful, I shadowed the parent for the rest of the court day, accompanying them in their hearing, in their meetings with their attorney, and observed other interactions they had with participating interpreters and other court staff. All parents who were interested in participating and met the criteria of being involved in an ongoing child welfare case in this court were enrolled in the study.
This county was chosen due to its diverse population. All parents enrolled in the study were residents of the same California county and were involved in either a family reunification (FR) case, where their child was placed outside of their care, or a family maintenance (FM) case in which they were assigned court hearings and supervision while the child remained in their care.Footnote 2 The parents that enrolled in the study identified as having ancestral ties to the US, Mexico, Guatemala, El Salvador, Honduras, Nicaragua, Philippines, India, Tonga, Italy, and Germany. More than half of the cases in the county involved Spanish-dominant speakers. Of the forty parents that volunteered to participate in the study eight were English-dominant parents, fourteen were either bilingual or multilingual parents, and eighteen were Spanish-dominant parents. Most of the attorneys and judges at the court were white, middle-class, English-dominant, and US citizens who did not speak Spanish fluently.
The findings in this article reflect patterns of metapragmatic commentary about parents’ speech obtained over the course of 143 full-day observations at court in addition to interviews conducted throughout the entire study period. Interviews with parents were conducted in a semistructured format with questions about their feelings about speaking in court, the services and treatment they received, and their reactions to the experience of child welfare court. Interviews with attorneys, judges, and other child welfare professionals included questions about their experiences working with parents in court, qualities of successful clients, and their experiences working with parents of varying linguistic repertoires. During observations, I took handwritten notes of parents’ behavior including their speech during their on-the-record hearings, off-the-record meetings between parents and their attorneys, interpreters, or other court staff within the courthouse. In my field notes, I documented salient conversational exchanges that parents, attorneys, and judges had throughout the day. I took in-the-moment handwritten notes of these conversations based on my training in linguistic anthropology and discourse analysis, paying special attention to metalinguistic statements, notable silences, interruptions, questions, clarifications, as well as notable changes in volume and gestures. I then typed up the notes as field notes in my office at the end of the workday.
My findings are based on this corpus of 400 single-spaced pages of field notes of observations and transcripts. My field notes of observations included notes on the social context and content of conversations that would help me understand the interactions parents were having in court with regard to their role in case management. In limited cases I was able to audio-record parents’ meetings with their attorney with the consent of the parent and attorney involved in the interaction. I use double quotes to identify conversations that were audio-recorded and single-quotes to indicate that material is drawn from field notes. Transcripts were created from the audio files and I deleted the audio files once transcripts were completed. Any identifiable information was removed or changed in all notes and transcripts. While audio-recordings provide a way to reproduce exact utterances for the purpose of more detailed analyses of conversations, I have found that my observations of nonrecorded language practices and interactions documented in my field notes provide important context toward understanding the social significance of utterances in relation to the lengthy and complex trajectory of child welfare cases. By combining both audio-recorded data from naturally occurring conversations, field notes on naturally occurring talk, and audio-recorded interviews, the data presented here provide insight into the range and salience of metapragmatic dismissals and their effects on the social interactions that contributed to parents’ legal experiences across on and off-the-record contexts in this child welfare court.
I used Atlast.ti to create codes for metapragmatic commentary used to refer to parents’ language practices and behavior within my corpus of research data. This allowed me to identify patterns of linguistic behavior and the social meanings that were assigned to forms of talk in relation to the procedural and legal questions of interest in the decision-making process, such as whether judges decided if parents were making substantive progress in their court-ordered case plan for family maintenance, reunification, or termination of parental rights.Footnote 3 Using discourse analysis (Wortham and Reyes Reference Wortham and Reyes2015), I traced the repetition of metapragmatic commentary about parents’ speech across various narrating events including hearings, off-the-record meetings, and court professionals’ off-the-record commentary. Through this form of analysis I identified that forms of silencing, circulating figures of disbelief, and stigmatizing labels of parents’ speech contributed to forms of normalized suspicion relative to parent narratives and voicings.
A SOCIO-LEGAL ECOLOGY OF DISTRUST
In between the morning and afternoon sessions, I spoke with attorneys, social workers, Court Appointed Special Advocates for children, secretaries, interpreters, clerks, and bailiffs about how they understood the child welfare court as a work environment and how they understood their roles in relation to the people that came through the public entrance. The attorneys, judges, and social workers often offered generalizations about the kinds of cases that they worked with. One attorney asserted that most of his clients were part of ‘the 6 percent of people in the population with very low IQ who use 90 percent of the court’s resources—when God shits on you, he shits on you really bad.’ Being one of my first interactions with this attorney, I did not press him on the sources of this numerical assertion, but I understood that the attorney was referring to parents in this setting as unintelligent, dependent on state resources, and incompetent at facing multiple life challenges. Most parents who came to this court faced difficulties stemming from a lack of financial resources, substance use problems, issues with domestic violence, and mental health problems. These life challenges can negatively affect their ability to demonstrate to attorneys, judges, and social workers that their children can be adequately cared for in their custody.
The organizational structure and the personnel of the child welfare court contribute to a socio-legal ecology of distrust that silences parents and forecloses alternative narratives by insulating and promoting the voices of child welfare professionals. Close and continuous relationships between attorneys, judges, and social workers in this child welfare court paralleled what Blumberg (Reference Blumberg1967) outlined as a social context in which organizational actors’ concerns for the continuation of their career, their investments in promoting administrative and bureaucratic efficiency, and maintaining their influence with other institutional colleagues may be prioritized over individual client interests. In my field site, it was a daily occurrence that before announcing the hearing and inviting the parents involved in each case into the courtroom, the attorneys and judges asked about each other’s children and spouses, the social workers and attorneys discussed their vacation plans and other personal milestones, and judges invited attorneys to social events held in their private homes. In contrast, attorneys and social workers only spoke to parents in time-constrained interactions tied to tasks related to their case and rarely disclosed elements of their personal lives with the parents that they worked with.
Attorneys are the main authorized speaker on parents’ behalf during on-the-record proceedings in child welfare courts in California. Cases can proceed without parents’ statements on the record and they often did in the course of my observations. If a parent did not answer a petition, the court could still assume jurisdiction and make decisions on a case as long as social workers demonstrated through their statements, records of phone calls, or certified letter receipts that they made efforts to locate a so-called nonresponsive parent. This is done to prioritize the placement of children and the legal ability of the court to make orders as to their care. It also underscores that in child welfare courts, parents’ input is secondary at best, if not considered irrelevant or damaging to their own interests.
Most of the cases I observed were submitted on the report, meaning the parent chose to forgo a trial which allowed the judge to make decisions based on the case report. Throughout my observations of the meetings between forty parents and their attorneys, attorneys most often recommended submitting on the report. Attorneys rarely made significant changes to the case report other than suggesting limited changes to individual words. By choosing not to spend court time, energy, and resources on revising the case reports or on emphasizing a need for a trial, these attorneys balanced what they thought would be effective representation and ethical advocacy, with their efforts to avoid alienating their colleagues who might find efforts to do so misguided, inefficient, and counterproductive to the goals of establishing parents’ swift compliance with case plans.
Silencing as Legal Advocacy
Attorneys knew through their training and experience that parents who wanted to advocate for themselves by testifying or speaking out in court could negatively affect their ultimate goals of reunifying with their children or maintaining custody of their children. A common strategy of silencing that attorneys used was to manage parents’ speech during a hearing by asking them to write things down for attorneys on a piece of paper instead of talking during a hearing. In this excerpt from my field notes during an observation of a meeting between Arnold, an English-dominant white and Italian father from the United States and his attorney, the attorney metapragmatically discussed the problem of speaking out in court. The attorney asked the parent to not say anything or to yell out in court despite being upset about the course of the case.
Attorney: ‘Yes that is what the social workers are recommending, they say you are doing good, that you two are co-parenting well. So this is the most important thing, do not yell out, do not say anything to anyone in court or in the lobby. Court is very structured; people can only talk in turn; whatever you do don’t yell out in court. I’m going to give you paper and you can write to me and I’ll- [hands parent a legal pad].
Attorney: Jessica do you have an extra pen?
Jessica: Yes, here [gives extra blue pen to parent].
Arnold: This has me so stressed out’ [parent pushes his hair back].
Several attorneys routinely offered their English-dominant clients paper and a pen to communicate with them during court proceedings. However, such strategies did not always go as planned. Arnold still spoke out during his court hearing, stating that he was a good father and took very good care of his children. His attorney spoke on the record, attempting to bring up a legal issue to support Arnold’s desire to quickly reunify with his children by claiming that although the court wanted to delay a decision to subpoena the children’s schoolmaster, the person being subpoenaed was not relevant to the current recommendations. The judge told Arnold and his attorney that she would continue the case to hear from the schoolmaster to consider what would be best for the children and that if she ruled today the father might not like that ruling. After the hearing, Arnold yelled out to his attorney in the hallway, stating loudly, ‘I have no voice!’ His attorney guided him into a meeting room and said, ‘it’s a strategy issue. Not everything has to be said.’ Attorneys thinking about how best to advocate for their clients sometimes silenced parents who they believed might hurt their own chances at maintaining or regaining custody of their children by asserting their voices and narratives in ways that contrasted with the norms of court procedure. Attorneys used metapragmatic statements to refer to how talk can be viewed on the record, to express norms about speech, and to make recommendations about how parents should or should not speak. Another attorney told a client who spoke African American Vernacular English that they needed to ‘speak clearly’ during testimony so that the court reporter could capture all the utterances spoken on the record.Footnote 4 Strategies to constrain and monitor the speech of parents reflected a concern with parents’ voices as a kind of wildcard—a site of risk and disruption to the orderly functioning of courthouse activities.
Arnold’s experience in court sheds light on an important difference in the silencing experienced by the predominantly Spanish-dominant parents that made up more than half of the cases in this child welfare court. This option of writing to communicate with their attorneys during a court hearing was not offered to Spanish-dominant parents who required an interpreter for court interactions. Seven out of the eighteen Spanish-dominant speakers in my study could not write in Spanish or English. These parents were marginalized in their ability to equitably communicate with their attorneys compared with parents who were literate in English, even though they were provided with interpreters for court hearings. An assumption that court staff often expressed to me was that Spanish-dominant parents could speak to their attorney through the interpreter during proceedings. However in practice, Spanish-dominant parents rarely did this, as they were usually occupied keeping up with the speed of the interpreter who was interpreting all of the speech of every person during the hearing. Additionally, interpreters usually stood more than six feet away from a parent and interpreted through a microphone that fed into headsets that only the interpreter and parent were wearing. This made it less likely that Spanish-dominant parents would communicate through verbal or written means with their attorneys during court proceedings.
Strategies of silencing and coercion are supported by the procedures and rules of the court (Clair Reference Clair2020, Reference Clair2021) and the belief that clients who have legal representation achieve more favorable outcomes than lay actors who represent themselves.Footnote 5 Attorneys drew on their expertise and experience in their metapragmatic assertions that they could better mobilize speech to shape a successful legal narrative for parents than if parents tried to do so themselves. To this end, attorneys engaged in the explicit silencing of clients’ alternative narratives during on-the-record hearings. When parents responded to the petition filed in court against them by showing up in court, parents were advised by their legal representatives that what they say and how they say it could negatively affect whether their children would be returned to them. Parents were rarely given time and space to speak directly to the judge. I observed many on-the-record proceedings that were held without so much as an audible sigh from the parents involved. Although I had conversations with parents at length about their thoughts and preferences regarding their cases before and after their hearings and knew that they had a lot to say about their grievances regarding the court’s process and decision making, within the courtroom they usually kept silent and were not directly addressed by others unless the case was set for trial. Trials where parents provided testimony could grant parents a way to speak on the court record; however, as Matoesian (Reference Matoesian2001) has shown, courtroom testimony is fragmented and attorneys can use questioning sequences to contort personal narratives in ways that reshape witness testimony from what may have been originally intended. Had attorneys encouraged testimony and trials as a way to include parent voices, parents would not necessarily have been better off.
Child welfare professionals are street-level bureaucrats who interact directly with citizens and have significant discretion in providing access to government services (Lipsky Reference Lipsky2010), bolstering the salience of their narratives and voices. What judges, attorneys, and social workers in California said about what looked and sounded like risk to a child in the care of a caregiver is important in light of the preponderance of the evidence standard for establishing jurisdiction, which entailed that the evidence would be evaluated on whether it is more likely true than not true.Footnote 6 Judges in communication with attorneys and social workers determined if the details collected by Child Protective Services social workers in case reports and petitions to the court, along with parents’ statements in court, were more likely true than not true. Decisions were officially based on a review of the evidence and application of precedent, yet they were also informed by the informal, off-the-record discussions and evaluations of attorneys, judges, and social workers as they discussed whether or not they believed parents were making substantive progress in a range of court-ordered social services. These often included supervised visits with their children, therapy, rehabilitation classes, parenting classes, drug testing, and court hearings. Social workers, attorneys, and judges made formal inquiries into the criminal history, employment, and housing situations of parents that also contributed to their determinations as to which parents should be given an opportunity to maintain or regain custody of their children.
The statutory language around neglect and adequate care of children in the California Welfare and Institutions Code enables state surveillance and intervention in families through discretion and interpretation of what counts as adequate care of children. Social workers, judges, and attorneys processing the cases of parents seeking to maintain or regain custody of their children must decide whether parents were able to “adequately supervise or protect the child” on a case-by-case basis.Footnote 7 The line between adequate care and neglect is complicated by the fact that determinants of neglect can include a wide range of allegations that are commonly based on circumstantial evidence, inferences, and suspicions rather than direct evidence of harm (Lens Reference Lens2015). Parents who can materially provide for their children’s food, housing, and medical care are less likely to be accused of neglect (Sedlak et al. Reference Sedlak, McPherson and Das2010), except for Black families who are subject to higher rates of neglect allegations even when they are not low income (Sedlak, McPherson, and Das Reference Sedlak, Jane Mettenburg, Ian Petta, Greene and Li2010). Social workers have been found to habitually err on the side of caution and initiate surveillance out of concerns that the possibility of harm to a child after an investigation could negatively affect the legitimacy of the child welfare system (Reich Reference Reich2005; Lee Reference Lee2016). Statutory language empowers child welfare decision makers to define the boundary between neglect and adequate care and recommend more as opposed to less court oversight.
Establishing jurisdiction based on preponderance of the evidence in child welfare cases in California began a six-to-twenty-four-month long process for parents in which they had to attend several court hearings to review their progress in court-ordered services. Prior to each hearing, a case report was prepared by social workers and distributed to all parties to the case, including to all legal representatives. The court made decisions by reviewing, evaluating, and discussing the report on caregivers’ progress in completing the case plan that outlined court-ordered services for the parent to complete. Judges monitored parents’ behavior, including their speech, across court-ordered services that occurred within and outside of court through the case reports that were composed by the department of Child Protective Services and submitted to court. Parents’ speech and behavior was subject to monitoring and commentary by judges, attorneys, and social workers by virtue of the entextualization of their statements and actions into the case reports and through their presence in court.
Despite explicit goals of enacting zealous and effective advocacy, strategies of silencing can implicitly reinforce stereotypes of parental deficiency by socially positioning parents’ speech as counterproductive to their own interests and as disruptive to their case management. In a context where judges, social workers, and attorneys must often rely on their own discretion in conversation with the other professionals in the working group, forms of silencing can have the unintended effect of contributing to a social perception of risk and disorder as emanating from the bodies of the lay actors they work with. Strategies of silencing discursively construct a socio-legal ecology of distrust between legal professionals and lay actors in a California child welfare court through the metapragmatic amplification of professional voices and routine suspicion and caution reflected in response to parent narratives.
FIGURES OF DISBELIEF
In between hearings and meetings with their attorneys, parents would occasionally ask for my opinion and express their confusion with what the right course of action was. I routinely responded that I, like them, was learning about how the system worked and therefore was also unsure of what the best response would be. I often told parents that I was confident that their attorneys had their best interests in mind. During conversations like these, several parents retorted that they did not trust any of the attorneys and social workers and others said that they trusted their attorney only. Carmen, a Spanish-dominant mestiza Honduran mother told me ‘No te creas tanto’ (don’t be so sure of yourself) after I had stated that I thought her attorney did care about her and her efforts to regain custody of her child during one of our hallway conversations. When I asked Lizbeth, an English-dominant white mother from the United States whose children were removed from her custody why she did not trust the other attorneys, she said ‘they used my previous history against me.’ I confirmed with Lizbeth that she was referring to the use of her previous criminal history in decision making, to which she said yes. Interviews with lay actors in criminal court settings have similarly indicated that less privileged lay actors develop a distrust of their attorneys (Clair Reference Clair2020).
In the child welfare court that I observed, attorneys also expressed suspicion regarding the parents they routinely worked with by drawing on metapragmatic dismissals of parents’ narratives that projected figures of disbelief. Figures are semiotic images of character personas that are projected by utterances (Goffman Reference Goffman1979; Irvine Reference Irvine, Silverstein and Urban1996, 132). Figures of disbelief in this context consisted of representations of a type of parent who might place children at risk of harm, where metapragmatic characterizations of the speech of such a parent were positioned as suspect. Hypothetical speakers and their utterances were used to discursively construct these figures of risk and disbelief. In meetings with parents, attorneys stated that they understood parents’ version of events and were dedicated to helping parents maintain or regain custody of their parental rights. At the same time, their metapragmatic references to figures of disbelief emphasized that parents’ narratives were not likely to be efficacious in court.
Frank as a Figure of Disbelief
Frank, an English-dominant father who identifies as white and Tongan from Tonga, is a father of two children and was facing homelessness as he underwent court-ordered alcohol testing, supervised visits, and court hearings at the child welfare court. Frank expressed to his attorney his desire to contest the social workers’ recommendation that he stop receiving services to reunify with his children. The social worker recommended that Frank’s parental rights should be scheduled for termination. During Frank’s meeting with his attorney, he stated, “these are my kids. Does he know? Ain’t gunna take my lil’ boy away from me. C’mon now.” Frank expressed his desire to maintain his parental rights, stating that the judge would not be able to take his kids away from him. Later in the conversation, Frank’s attorney used a metapragmatic technique of voicing what the judge would hypothetically say to illustrate to Frank why his arguments in court would likely be unsuccessful.
Attorney: “I have to be honest with you. Of course in court I would fight for you as hard as I could. But here in this room I have to tell you the truth. And that is the judge already knows your history. He is very very likely to say starting [a substance use rehabilitation program] yesterday is too little too late and that you knew that you only had only six months and for the first four months, you continued to drink and get in fights. I don’t think he’s going to agree that you should have two more months.
Frank: You know what you put me on that stand.”
Frank’s attorney’s use of the hypothetical voice of the judge formed a metapragmatic dismissal of Frank’s repeated assertions of what he believed was his unalienable status as his children’s parent and his desire to “go fight” for his kids. Frank’s attorney framed the metapragmatic dismissal of Frank’s statement by voicing a hypothetical judge who would likely say that his current efforts to begin attending a substance use rehabilitation program four months after his case plan recommended was too little too late. Nevertheless, Frank demanded to be put on the stand and asserted that it was important for him to do so, even if the only positive outcome would be only two months more of supervised visits with his children before they scheduled a hearing to terminate his parental rights. Although Frank’s parental rights were scheduled for termination at the end of the hearing, his testimony during the hearing served to demonstrate his desire to remain in the lives of his children. His testimony likely contributed to the foster parents agreeing to allow supervised visits between Frank and the children at their discretion even after his rights were terminated. This might not have occurred if Frank had followed his attorney’s advice to submit on the report, forgoing a trial and the ability to testify to the love and care he had for his children.
Attorneys and judges drew on the figure of disbelief in ways that established an antagonistic footing between them and parent clients. Frank’s assertion that he still wanted to testify was met with his attorney’s assessment that it was unlikely to change the outcome and that Frank’s narrative was deficient as a legal strategy. In voicing the hypothetical judge’s statement, Frank’s attorney positioned his client as a figure of disbelief, a kind of parent with a legally deficient narrative that does not meet the court’s expectations for regaining custody of a child. The figure of disbelief is a productive symbolic sign that attorneys and judges construct and circulate as a kind of informal barometer informing legal strategy and decision making with respect to cases and parents’ available remedies.
Ashley Contesting the Figure of Disbelief
Some parents explicitly tried to challenge the metapragmatic dismissals circulated about their testimony that characterized their narratives as suspect. Ashley, a multilingual, Indian American mother from India, had a family reunification case open due to her substance use and her lack of stable housing for herself and her children. During her meeting with her attorney, Ashley showed her attorney her prescriptions for her pain medication and discussed her disagreement with the judge’s statement from the previous hearing that Ashley was looking into various ways to continue her substance use.
Attorney: “You wanted to show me some of those prescriptions?
Ashley: Yeah, so I wanted to be very clear that I’m not freakin’ window shopping or whatever they said last time.”
Ashley demonstrated her disagreement with what she understood as a metapragmatic dismissal of her testimony by the judge and social workers who used the term “window shopping” during her last hearing to refer to her efforts to obtain pain medications as indicative of her problem with substance use. Ashley had two positive tests for methamphetamines in the past which contributed to the judge’s decision to continue court-ordered services for Ashley. Although Ashley disagreed with the statement that she was window shopping in her meeting with her attorney, she agreed to submit on the recommendations and not contest the disposition hearing based on her attorney’s counsel. After her attorney left the meeting room, Ashley and I began a recorded interview, where she stated,
“I don’t know where to go. Definitely not trying to get a bill racked up the butt because I don’t have an insurance from my job and I don’t have you know like I don’t know where to go [with] Medi-Cal. At least I know in the ER covers Medi-Cal, every ER has to cover medical Medi-Cal by law, so hey I’m safe there, I don’t have a four-thousand-dollar bill coming to me after that.”
Ashley’s multiple visits to emergency rooms for her pain management was talked about as evidence that she might be looking to continue her substance use. The judge, the social workers, and the attorneys on the case, who were accustomed to interacting with primary care providers through their private insurance for their own medical care, did not seem to take Ashley’s concerns about medical bills seriously. They wanted Ashley to get regular care for herself and her child from a singular provider who could be covered by Medi-Cal, the state insurance. Despite Ashley’s assertion that the medicines she used were legitimate and that she did not pose a risk of harm to her child, Ashley’s rejection of “whatever they said last time” did not make it onto the official case record. Her dismissal of the judge’s statement during her meeting with her attorney did not change the course of her case. Ashley did not testify on advice from her attorney and her case proceeded along the existing case plan recommendations.
Parents in child welfare court mobilized different strategies to challenge the figures of disbelief that were used to refer to their narratives and their ability to be adequate caregivers to their children. Some parents asserted their rights to a trial and testified, despite their attorney’s recommendations to do otherwise, whereas other parents sought to confront the forms of devaluation in off-the-record meetings with their attorneys in meeting rooms prior to their hearings. In their interactions with parents, attorneys and judges subtly referred to parents’ narratives as deficient by voicing figures of disbelief. These figures positioned parents’ narratives in terms that were antagonistic to the narratives that the court produced. Although parents resisted the metapragmatic dismissal and hierarchical amplification of the figure of disbelief, their actions to contest these forms of devaluation of their narratives did not result in immediate reunification and maintenance of their parental rights free of court intervention. Parents were able to express their disagreement with this devaluation of their narratives to their attorneys and to me; however, their cases remained relatively unchanged in terms of the requirements to comply with the case plan and court timeline for services.
EXCUSES AND LIES
Another type of metapragmatic dismissal circulated by attorneys and judges was their use of the labels “excuses” and “lies” as descriptors of parents’ speech. Although judges and attorneys used these labels in informal conversations during meetings or before hearings, the following interview quotes and quotes from in-person exchanges with me reflect the spirit and salience of this kind metapragmatic dismissal. On the surface, labeling something as an excuse might seem benign or inconsequential, yet over time, the frequency of this label reinforced a social understanding among judges and attorneys that dismissed parents’ speech as untrustworthy. This is consequential in light of discretionary decisions being made about whether or not parents are making progress in their case plans and whether or not the parent can be expected to continue to keep their children safe if released permanently into the parents’ care. When the speech of parents is identified as a kind of excuse rather than a legitimate claim, this could influence perceptions of credibility, as well as the extent to which attorneys and judges contribute time and effort to listening to parents’ narratives. Most attorneys kept their meetings with parents at court brief, usually under twenty minutes. Furthermore, it was rare for the discussions between attorneys and parents prior to their hearings to result in any dramatic shifts in the already existing case plans.
When parents are evaluated for whether or not they should be trusted with their children’s care, the labels of excuses and lies indicated potential risk, cautioning attorneys and judges to question the truth and legitimacy of parents’ utterances. Stating that something uttered is an excuse reflexively asserts that the utterance in question is an attempt to justify or lessen the seriousness of an offense. When used in social interactions, the metapragmatic label of excuse is an evaluative indexical that points to a particular utterance and characterizes and evaluates it as a recognizable type of speech event that has an established social value (Wortham and Reyes Reference Wortham and Reyes2015, 51). Attorneys and judges employed evaluative indexes among sets of alternative signs that communicated their own evaluative stances regarding the cases they heard about. Child welfare professionals chose between other possible metapragmatic labels such as “explanations,” “statements,” or “affirmations” across various settings, and yet terms like “excuses” and “lies” were common in off-the-record attorney-client meetings and discussions with colleagues.
In between hearings, attorneys occasionally asked me what my opinion was about the evidence presented and if I thought parents were telling the truth. During these interactions, attorneys seemed to want to gauge the credibility of what was presented in court and whether it sounded convincing or conclusive. In my attempts to avoid influencing any particular outcome, I pointed to multiple possibilities of truths as presented in court. The attorneys would often scoff at this, unwilling to believe that I did not automatically orient to their perceptions of risk and fault of parents. One attorney with more than twenty years of experience in child welfare repeatedly stopped me in the hallway to tell me that most of their clients had personality disorders and described the children in child welfare court as ‘children of the lie.’ When I asked what that was, the attorney explained that children learned to keep family secrets and bought into their parents’ lies and continually made excuses for their parents, which enabled continuing their risk of harm. Another attorney asked me to answer a riddle before entering the courtroom for a hearing regarding a parent struggling with substance use. The attorney stood in between the doors that separate the courtroom from the lobby and asked me, ‘How do you know if a drug addict is lying to you?’ I shook my head to signal my lack of an answer, and he responded, ‘Are their lips moving?’ While the brashness of labeling persons struggling with substance use as “addicts” was concerning, I nodded to signal that I understood his point and jotted down the interaction in my field notes. This message, a kind of inside joke, signaled by it being out of earshot of the people in the lobby and the people in the courtroom, featured a reflection of the articulatory function of lips moving and the production of speech understood as lies from stigmatized bodies. Interactions like these alerted me to metapragmatic dismissals of parents’ speech as consistently suspect and how parents’ narratives could be interpreted as a sign of potential risks to children.
Most parents in court experienced financial barriers to court services—for example, hardship in paying the twenty-dollar copayment for each parenting class; arriving to visits on time due to inefficient public transportation; or arriving late to court due to unreliable vehicles in need of gasoline, maintenance, and repair. Still, judges and attorneys regularly described parents’ narratives about the financial barriers to services they faced by using the metapragmatic label of “excuses.” For example, one of the judges said to me in an interview toward the end of my study,
“You’ve heard on countless occasions, when the lawyer says well, he tried to do the parenting classes and you know, couldn’t afford to pay. There’s a sliding scale, nobody’s prohibited by payment. And if you don’t get your certificate but the social worker verifies that you went to all of the classes, then for me, you went to the classes. I don’t need your diploma to give you credit for going to the classes. So, excuses like that, you know you just don’t want to hear ‘em.”
In this excerpt, the judge metapragmatically reflected on attorneys’ routine statements that their clients were unable to afford paying for the court-ordered services that were ordered in their case plan. The judge asserted that there are ways around financial responsibility for classes that the parents should have used to complete their court-ordered requirements. In my discussions with parents, most of the parents recalled that their social workers explicitly told them they had to attend parenting classes and submit a certificate of completion to them and to their attorneys. The facilitators of these classes made it clear that payment was required at all sessions to receive the certificate of completion. Furthermore, attorneys typically advised parents to do whatever the social worker recommended. Therefore, the judge’s alternative suggestion, that parents attend the classes without paying the fee, was unlikely to have occurred to parents as an option. At no point during my eighteen months of observations of forty cases did the attorneys recommend that parents attend courses without paying for them. Using the evaluative index of “excuses” positions parents as having illegitimate explanations for their lack of compliance with their case plan.
Despite messages from their attorneys that parents should be in regular contact with their social workers, parents in court expressed difficulties in contacting their social workers to report problems with their court-ordered services or to request changes in their scheduled visits with their children. Parents who described a lack of responsiveness from social workers were metapragmatically dismissed as making excuses by attorneys and social workers. Lapses in communication were habitually attributed to parents and their excuses rather than the bureaucratic barriers to timely access to social workers. In the following excerpt from an interview, an attorney used the evaluative indexical excuse to illustrate a common message she communicates to her clients:
“I always tell them, you know, don’t, I don’t want you to come back in six months and say well the social worker never returned my phone call because you can always call me and I will call them and their supervisor and you will get a call back, so you don’t have that excuse, you need to be actively tryin’ to get your child back.”
In this reflection of her own speech, the attorney voices a characterization of what she tells her clients and how their efforts to be in communication with their social worker reflects their efforts to reunify with their child. Framing lapses in communication between parents and their social workers as an excuse depends upon a language ideology that assumes that parents have unlimited power and agency in engaging with their social workers and their legal cases. The belief that parents have unlimited access to their social workers and their attorneys depends on a worldview where information is readily available and comprehensible if one requests it. Nevertheless, I met countless parents who stated that they would attempt to call their social workers and attorneys but that they would not be able to communicate without an interpreter, or that their calls were never returned, or that when they called, they were transferred over to a new social worker and they became confused. Others attested that they faced long wait times or rarely received calls back from their social workers or attorneys. Many parents also explained that by the time they found time to call in between working shifts, the social work department would be closed. One parent asked me to call her attorney on her behalf to alert her to updates in her access to services, but when I tried calling the inbox was full and I was unable to leave any messages. It ended up being faster for me to talk to the attorney in person at the court the next day than to receive a response from the attorney by phone or email. I had research support to come to court every day, however most parents were unlikely to have the time or resources to take time off work or from seeking secure housing and employment to come to court when they did not have an assigned court date to look for an attorney who may or may not be there on a given day. The belief that a parent can simply pick up a cellular phone and unproblematically request and receive information about their case is not centered on parents’ everyday experiences with child welfare systems.
In public discourse, parents are regularly blamed for the risks that poverty, lack of investment in education, racial discrimination, and community disinvestment can have on the lives of their children. In criminal court settings, ethnographic scholarship has identified that defendants experience being labeled as “mopes,” burdens, and failures, which contribute to a rationalized distain of defendants by judges, prosecutors, and defense attorneys (Van Cleve Reference Cleve and Gonzalez2022). Merry’s (Reference Merry1990) ethnography of New England lower courts found that officials in criminal, juvenile, and small-claims courts routinely described white working-class litigants as bringing “garbage cases” and “shit cases,” thereby framing the problems, disputes, and concerns of these litigants as invalid, illegitimate, and failing to raise real legal issues. In this California child welfare court, parents’ narratives about the structural barriers they face in assuring their children’s safety and well-being were challenged through the evaluative indexes of excuses and lies, which individualized the issues they faced.Footnote 8 Judges and attorneys routinely circulated the metapragmatic dismissals of excuses and lies to dismiss parents’ critiques of systemic inefficiency and parents’ reports of their difficulties complying with court requirements. These metapragmatic dismissals stigmatized parents’ verbal communications, often even before their lips started moving.
CONCLUSION
In this article, I have demonstrated how attorneys and judges participating in case management in a California child welfare court reinforced perceptions of parental deficiency through the use of metapragmatic dismissals—practices of silencing parents’ narratives, voicing figures of disbelief, and labeling of parents’ speech with stigmatizing evaluative indexes. Although parents had some opportunities to speak during off-the-record meetings and during on-the-record court proceedings, and even though they were assisted by counsel who valued the idea of giving them a voice before the law, most of the parents whose cases I observed felt strongly that they were not heard fairly in relation to their own interests, desires, and values. The discursive activity expressed through metapragmatic dismissals in off-the-record meetings between parents and their attorneys, informal off-the-record commentary by attorneys, and interviews with judges and attorneys reflect shared forms of suspicion and devaluation with respect to the voices and narrating practices of parents. Attorneys’ and judges’ metapragmatic dismissals of what parents have to say and how they say it facilitate a professional investment in a predictable bureaucratic outcome that centers on parental compliance with institutional case plans and limits the influence of parents’ narratives of resistance.
Over time, attorneys and judges working regularly with each other in court can develop shared beliefs about the kinds of parents that speak up, contest, or otherwise provide alternative narratives of their capacity to parent. These beliefs can be circulated through metapragmatic dismissals that normalize the silencing and distrust of lay actors’ narratives. The perceived voicings of parents who are legally identified as unfit parents over time can help construct what Agha (Reference Agha2005) calls a metapragmatic stereotype in that it identifies a collection of linguistic forms that are understood to be linked to types of persons. Recurring linguistic messages sediment into recognizable emblems over time (Agha Reference Agha2003) and the social enregisterment of parents’ speech as problematic can be difficult for marginalized participants to challenge.
Although the findings in this article do not establish a direct link between metapragmatic dismissals and individual case outcomes, the analysis of attorneys’ interactions with parents, judges’ and attorneys’ metapragmatic commentary, and parents’ experiences illustrates how these legal professionals created a working environment that routinely rejected and diminished parents’ narratives and perspectives. The data provided by these ethnographic observations offer insight into how the discourses of attorneys and judges may implicitly, and even unintentionally, undermine the credibility of current and future lay actors in legal settings. These discourses contribute to the circulation of demeaning stereotypes of lay actors as unreliable narrators and, subsequently, deficient persons. Furthermore, because many of these comments occur in off-the-record settings, it can be difficult to connect them directly with the outcomes in specific cases. Nevertheless, attorneys’ and judges’ metapragmatic practices throughout the course of their working day and interactions with parent clients provide an avenue through which to consider how low-income and racialized lay actors continue to experience stigma and bias in child welfare proceedings despite institutional and professional assertions to the contrary.
None of the participants in the child welfare court that I studied would openly claim to have classist or racist intentions shaping their behaviors and linguistic commentary. Yet covert racist discourse can draw on silences that invite inferences, presuppositions, and entailments that draw on the context and communicative practices that exceed individual claims of meaning or intentionality (Hill Reference Hill2008, 41). Racialized perceptions of people can be normalized through consistent social and institutional metapragmatic positioning of a racialized group’s linguistic practices as nonnormative, deviant, or deficient (Hill Reference Hill1998; Rosa Reference Rosa2016a, Reference Rosa2016b; Reference Rosa2019; López-Espino Reference López-Espino2021). Assertions that a particular stance or practice is not racism can distract from interpersonal accountability with respect to addressing racialized inequalities (Lentin Reference Lentin2018; see also Bonilla-Silva Reference Bonilla-Silva2003; Bonilla-Silva, Lewis, and David Reference Bonilla-Silva, Lewis and David2004 for examinations of color-blind discourse). Prosecutors have been found to offer pretextual and post hoc rationales about their decisions in jury selection that explicitly denounce racism while at the same time preemptively classifying potential jurors along racialized lines (Offit Reference Offit2022). Experiences of racialization, gendered social formation, classed experiences, and other forms of personhood are profoundly shaped by the metapragmatic practices that coarticulate meaning among social groups.
Delineating the various forms that metapragmatic dismissals can take offers new insights into how discourse can operate to marginalize the speech of disempowered actors in legal settings. Powell, Hlavka, and Mulla’s study of legal narratives in criminal cases of childhood sexual assault identified that “attorneys produced racially coded language that emphasized family lifestyle to discredit and target children’s families who deviated from white, heteronormative, two-parent, middle-class households” (Reference Powell, Hlavka and Mulla2017, 471–72). Lee’s ethnography of the New York child welfare system argued that decision-makers drew on “overtly color-blind, but nonetheless racialized, discourses in making decisions about neglect and placement” (2016, 14). This study extends these insights by outlining the specific metapragmatic forms that can contribute to racially coded language and covert racist discourse.
Child welfare courts and the off-the-record interactions between legal professionals, social workers, and lay actors are sites of ritual ordering of speech where professionals maintain and reproduce power and authority over legal narratives in the name of institutional efficiency, legal norms, and equal treatment before the law. I show how seemingly neutral metapragmatic discourses about lay actors’ speech practices made by judges and attorneys, combined with statewide statutes, standards of evidence, and norms of court procedure, contributed to the socio-legal environments that normalized the dismissal of lay actors’ narratives. My ethnographic approach points to avenues for continued study of the role of metapragmatic discourse in shaping legal action, practice, and racialized inequalities in legal institutions.
My findings caution against the belief that bias training or language training on their own will prevent professionals from contributing to institutional hierarchies that devalue the narrative contributions of marginalized and racialized communities. Practices of voicing, narrative construction, and metapragmatic evaluations operate along legal, bureaucratic, and social structures that symbiotically legitimate and perpetuate such dismissals. The metapragmatic dismissals I identify maintain structural and interactional limits on parents’ ability to advocate for themselves and contest court intervention in their family life. The socio-legal ecology of child welfare court has little space for narratives that challenge entrenched ideas that categorize marginalized, impoverished, and racialized populations as normatively deficient. Professionals who are committed to notions of due process, zealous advocacy, and fairness can, through seemingly neutral evaluations of language practices, unwittingly participate in dismissing, devaluing, and silencing the marginalized actors they are tasked with serving. Assertions of neutrality in practices of evaluation of legal narratives are always also cultural and political stances. What constitutes a legitimate legal narrative—what it should sound like and who can produce it—play a key role in maintaining and reproducing power through the law.
